NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAY 1 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

U.S. EQUAL EMPLOYMENT No. 17-16786

OPPORTUNITY COMMISSION,

D.C. No. 2:16-mc-00047-NVW Petitioner-Appellant,

v. MEMORANDUM*

VF JEANSWEAR LP,

Respondent-Appellee.

Appeal from the United States District Court for the District of Arizona Neil V. Wake, District Judge, Presiding

Argued and Submitted April 11, 2019 Pasadena, California

Before: GRABER and BYBEE, Circuit Judges, and HARPOOL,** District Judge.

The Equal Employment Opportunity Commission (“EEOC”) appeals the

district court’s decision declining to enforce a subpoena issued by the EEOC

against VF Jeanswear. Following a charge of discrimination filed by L.B., a former

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable M. Douglas Harpool, United States District Judge for the Western District of Missouri, sitting by designation. employee of VF Jeanswear, the EEOC subpoenaed a wide range of employment

information from VF Jeanswear relating to its supervisors, managers, and

executive employees. We review the district court’s decision not to enforce the

subpoena for abuse of discretion. McLane Co., Inc. v. EEOC, 137 S. Ct. 1159,

1170 (2017).

1. The district court abused its discretion when it held that the subpoenaed

information was not relevant to L.B.’s charge. For an EEOC subpoena to be

enforceable, it must seek information that is relevant to the charge under

investigation. EEOC v. Shell Oil Co., 466 U.S. 54, 68-69 (1984). The relevance

standard allows “access to virtually any material that might cast light on the

allegations against the employer.” Id.

L.B. alleged that because of her sex, she was harassed, demoted, underpaid,

and not offered opportunities for promotion. L.B. also alleged that female

employees generally were discriminated against because of their sex. Specifically,

she stated “Females are not afforded the opportunity in top level positions. Top

level positions are male dominated.”

In conducting its relevance analysis, the district court proceeded from the

premise that only L.B.’s personally-suffered harms could be considered. However,

there is no legal basis for limiting the scope of the relevance inquiry only to the

parts of the charge relating to the personally-suffered harm of the charging party.

2 17-16786 Indeed, we have held otherwise. EEOC subpoenas are enforceable so long as they

seek information relevant to any of the allegations in a charge, not just those

directly affecting the charging party. EEOC v. Fed. Express Corp., 558 F.3d 842,

855 (9th Cir. 2009).

2. The district court also abused its discretion when it held that the subpoena

was unduly burdensome. It is the producing party’s burden to prove that

compliance would be unduly burdensome. EEOC v. Children’s Hosp. Med. Ctr. of

N. Cal., 719 F.2d 1426, 1428 (9th Cir. 1983) (en banc).

The district court held that compliance with the subpoena would impose an

undue burden to the extent it would require VF Jeanswear to produce information

not contained in the computer systems. The district court did not make an explicit

finding as to the precise cost of compliance. For its part, VF Jeanswear represented

that compliance would cost an estimated $10,698.00.

The EEOC offered into evidence the declaration of Ronald Edwards, who

presented evidence that VF Jeanswear’s claim of undue burden was unfounded and

substantially overstated. VF Jeanswear did not proffer any evidence refuting

Edwards’ declaration. Even if Edwards’ declaration had been rebutted, VF

Jeanswear’s estimated cost of complying with the subpoena as part of an

investigation into systemic and unlawful discrimination does not unduly burden a

company with approximately 2,500 employees.

3 17-16786 The EEOC has represented that it no longer seeks information concerning

“age” and “reason for termination” from VF Jeanswear. The EEOC also has

represented that it no longer seeks information predating 2012 for subparagraphs

(f) and (g) of the subpoena. We hold the EEOC to those representations.

REVERSED and REMANDED with instructions to enforce the subpoena

as written except as to information pertaining to age and reason for termination and

except as to information predating 2012 for subparagraphs (f) and (g).

4 17-16786